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We invite you to participate in the conference panel on the ‘Interface of Law and Public Policy’ at the 3rd Conference of International Public Policy Association at Lee Kuan Yew School of Public Policy, the National University of Singapore from 28th June to 30th June 2017. The panel focuses on the differences in Public Policy orientation between countries following “Liberal Constitution” and “Transformative Constitution”.

Western liberal democratic traditions were largely influenced by the Enlightenment era and the rise of capitalist processes. Thus, their constitutions have historically emphasised negative rights with the role of the Judiciary being limited to the adjudication of private interests.

In the global south, most countries have a legacy of colonialism. For them, the process of mobilisation against colonial forces and the process of making the constitution were intertwined. They developed constitutions that were ‘transformative’ in nature, placing emphasis on the protection of public interest in policy areas such as education, health, food security, access to land and water, corruption, etc. Judiciaries in the global south have been empowered to play an active role in directing public policy agendas, thus building a significant interface between law and public policy.

Papers highlighting the intricate relationship between Law and Public Policy along lines of the questions given below (for suggestive purposes only) are welcome.

What are the similarities and differences in the orientation towards the concept of justice from the discipline of Law and Public Policy?

Is there any evidence for policy convergence among nation-states due to the work of International agencies, multi-lateral and bilateral agreements?

What are sub-domains of Law (e.g. administrative law, planning law, regulatory law) that have shown high intersectionality with the questions of Public Policy?

Abstracts of 500 words must be submitted before 15th January 2017 for the panel T02P06 (under the theme Comparative Public Policy) at http://www.icpublicpolicy.org/

Sachin Tiwari

This polemical account is an upshot of a twitter conversation with another MPP grad on an article in New York Times by Maskin and Sen that he shared. The authors explain how a majority rule based electoral process (instead of the prevailing plurality rule) might have stopped Trump, who is the leading presidential candidate in the upcoming election in the US and has won the primaries in 23 states (Read: How Majority Rule Might Have Stopped Donald Trump). The authors seem to suggest that on a one-on-one contest, Trump would have been defeated in 17 states. Sure! But, it is a conjecture as best as anyone else’s because it just did not happen. Giving it to the authors, they do say that it might have stopped Donald Trump.

The alleged outcome must necessarily happen for this thesis to hold any water. Launching off from this point, the authors write –

In the early contests, Mr. Trump attracted less than 50 percent of the vote (in Arkansas he got only 33 percent); a majority of voters rejected him. But he faced more than one opponent every time so that the non-Trump vote was split. That implies he could well have been defeated in most (given his extreme views on many subjects) had the opposition coalesced around one of his leading rivals.

True! Anyone with a keen eye on elections and voting behaviour would agree with that one on defeating a candidate by coalition of the opposition around a leading rival. This leads to the question – does it (coalitions as these) happen? If yes, what prevented it from happening in Trump’s case? The near impossibility of determining this curious phenomenon is the point of this post. I would argue that this is at best an academic quest which helps scholars but lacks the capacity to look beyond the process and account for the outcome. It appears sloppy on account of the fact that the reasoning (as quoted above) is used to argue that the candidates getting elected are not the right ones or desirable ones. It is theoretically correct that the winners lack the support of a majority of voters. The problematic bit comes next –

As with the Republicans and Mr. Trump’s flirtations with fear and violence, India now suffers the ill effects of a serious confusion when a plurality win is marketed as a majority victory. The Muslim Brotherhood government of 2012 to 2013 in Egypt provides another, and similarly disturbing, example; it helped to undermine democracy in Egypt altogether.

The assumption that the winning candidates in the cited examples from US, India and Egypt (party in this case) are ‘disturbing’ and have had negative consequences is the problem. This is an impressionistic inference. Let me present a counter view – that the inherent ability of a democratic setup in checking the unrestrained behaviour of elected leaders prevents the ‘disturbing’ consequences from happening, although during the campaign the contesting candidates might come across as potentially problematic if they act on their rallying points.

Systemic checks in a democratic setup

This is true of India and the US as history suggests. The system of governance – executive, legislature and the judiciary, are at least minimally robust enough to check the anti-public interest and self-serving (or even party serving) of the winning candidate when he is appointed. Except for the period of emergency in India during Indira Gandhi’s reign, we can see no evidence of a leader running amuck with his own agenda. The analysis by Maskin and Sen stands reasonable in the electoral process but runs out of consistency when it comes to their assertion that this process produces winners who are likely to undermine democracy or are against the best interests of the country. It would have been nice to see a specific example supporting their assertion. In India, even a seemingly larger than life leader like Prime Minister Modi has had a tough rope walk in terms of appeasing the Hindutva groups supporting his party, and keeping the interests of other minority groups in regard. It is not as straightforward as the article might suggest. When bad guys get elected bad things do not necessarily happen! A campaigning Donald Trump is very likely to undergo a change as Donald Trump in the White House. This change will be due to the candidate being given the power as a result of his electoral win. This power is not dictatorial. This power is not freewheeling. It comes with rules, conditions and protocols of decision-making. And hence, it should not be assumed that a candidate pitching contentious and potentially divisive policies during campaigns when given power will be able to do exactly same things. That is the strength of the democratic system. Otherwise, one can forever imagine and probably introduce more workable election procedures and keep finding problems with the winning candidate because he may end up acting in problematic ways. That failure of the winning candidate is not because he was not voted by the right procedure. What stands as a guarantee in the ranking system that the winning candidate who will ‘truly command majority support’?

If the challenge is to arrive at an election system which leads to a winner who truly commands majority support then that elegant suggestion by the authors is well taken. But for those who are keen on understanding leaders in roles of power and acting in full public glare, this is only a wishful arrangement. There are other variables like human behaviour which can lead to equally desirable or undesirable outcomes. The point is to throw light on those situations that can make a useful contribution to political theory.

(Sachin Tiwari is a graduate student of Master of Public Policy in the National Law School of India University. He can be reached at sachin.t@nls.ac.in)

Prof Sony Pellissery, Associate Professor and MPP Coordinator, National Law School is the recipient of the Prof G Ram Reddy Memorial Award for Social Scientist 2015 in Hyderabad, India. In his acceptance speech, the renowned academician dwells on the nuances of understanding public policy in India as political responsibility and a tool to enhance the dignity of every citizen. Watch the professor’s take on policy, politics and people.